Tomasetti v Brailey

Case [2012] NSWCA 6

Court of Appeal

New South Wales
Case Title: Tomasetti v Brailey
Medium Neutral Citation: [2012] NSWCA 6
Hearing Date(s): 30 January 2012
Decision Date: 30 January 2012
Jurisdiction:
Before:

Campbell JA
Decision:

Notice of Motion filed 23 January 2012 dismissed.
Applicants to pay costs of Respondents of Notice of Motion.
Costs of application made 22 and 23 December 2011 to be paid by Applicants.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - civil - interlocutory issues - Mareva order - appellate jurisdiction - freezing order granted at first instance to now appellant - appellant unsuccessful at trial - appellant seeking new freezing order pending hearing of appeal - power of Court of Appeal to grant Mareva orders under UCPR 25.14 - considerations in granting Mareva order to appellant unsuccessful in court below - refusal to give undertaking not in itself evidence of actual or threatened diminution of assets - orders refused
Legislation Cited:

Corporations Act 2001 (Cth)
Fair Trading Act 1987
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited:

Aspermont Ltd v Lechmere Financial Corporation [2002] WASCA 52; (2002) 27 WAR 1
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Commissioner of State Taxation (WA) v Mechold Pty Ltd (1995) 95 ATC 4053
Frigo v Culhaci [1998] NSWCA 88
Ghoth v Ghoth [1992] 2 All ER 920
Ketchum International PLC v Group Public Relations Holdings Ltd [1996] 4 All ER 374
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Tomasetti v Brailey [2011] NSWSC 1446
Texts Cited:
Category: Interlocutory applications
Parties:

Peter Charles Tomasetti (First Applicant)
Sandra Joyce Cordony (Second Applicant)
Tomasetti Investments Pty Ltd ATF Tomasetti Superannuation Fund (Third Applicant)
Edmund Francis Brailey (First Respondent)
John Clifford Fenton (Second Respondent)
Christopher Campbell Lane (Third Respondent)
TJC Financial Planning Pty Ltd (Fourth Respondent)
Representation
- Counsel:

Counsel
A Maroya (Applicants)
C Carroll (Respondents)
- Solicitors:

Solicitors
Heckenberg & Koops (Applicants)
Holman Webb (Respondents)
File number(s): 2009/297599
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:

JUDGMENT

  1. CAMPBELL JA : This is an application by the appellants for a freezing order against the respondents to the appeal.

  2. The appellants brought proceedings in the Common Law Division of the Supreme Court in which they made claims against four different defendants. Those defendants were three natural persons, Messrs Lane, Brailey and Fenton, and a company, TJC Financial Planning Pty Limited. The claims alleged the tort of negligent advice, breach of contract arising from the same facts as the tort of negligent advice, misleading and deceptive conduct resulting in a claim…

Continue reading Tomasetti v Brailey

Sign in free to access the full text

Details
AGLC
Tomasetti v Brailey [2012] NSWCA 6
Case
[2012] NSWCA 6
Decision Date

CaseChat Overview and Summary

In *Tomasetti v Brailey*, the appellant sought a Mareva order (freezing order) from the Court of Appeal pending the hearing of their appeal against a decision of the primary judge. The respondents were the original plaintiffs in the proceedings.

The central legal issue before the Court of Appeal was whether it possessed the power to grant a Mareva order under UCPR 25.14, and if so, what considerations applied when an appellant, having been unsuccessful at trial, sought such an order to preserve assets pending their appeal.

Campbell JA considered the principles governing the grant of Mareva orders, particularly in the context of an appeal. His Honour noted that the power to grant such orders exists under UCPR 25.14. However, the court found that the appellant had not demonstrated a sufficient risk of dissipation of assets. The refusal by the respondents to give an undertaking regarding their assets was not, in itself, evidence of an actual or threatened diminution of those assets. Consequently, the court determined that the criteria for granting a Mareva order were not met.

The Notice of Motion filed by the applicants was dismissed, and they were ordered to pay the costs of the respondents in relation to that motion, as well as the costs of an earlier application made on 22 and 23 December 2011.

Orders

Orders of the court

Notice of Motion filed 23 January 2012 dismissed.

Applicants to pay costs of Respondents of Notice of Motion.

Costs of application made 22 and 23 December 2011 to be paid by Applicants.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.